Statutory Interpretation - a 2012 guide

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Introduction

Statutory interpretation is central to the modern private and public practice of law. It is critical to every case affected by legislation. And nearly all cases today involve legislation.

“Statute law in its practical application is not what the Act says”, Francis Bennion reminds us, “but what a court says (or would say) the Act means.”[1] This makes studying statutory interpretation, as Sir Kenneth Keith has noted, at least as important as studying legislative texts: “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them.”[2] An authoritative interpretation is therefore determinative – the last word.

Few cases today involve no legislation. Justice Kirby, in common with many other judges, has said: “If the interpretation of contractual documents is an important part of the modern judge’s vocation, the construction of statutes is now, probably, the single most important aspect of legal and judicial work.”[3] “[T]he whole of judicial review”, for example, “could be seen as an appendix to the law of statutory interpretation”.[4] Chief Justice French in 2012 called Australia’s legal system “a statutory universe”: “it is difficult to find any legal problem which is able to be defined and resolved solely by resort to the common law. On the other hand, it is not easy to find a statute which does not depend for its interpretation on principles derived from the common law”.[5] And the Legislation Bill before Parliament proposes to update the law on the drafting, publication, and revision of legislation. So it is no exaggeration to call statutory interpretation, as has Kirby J, lawyers’ “most important task”.[6]

The rest of this booklet is these six chapters:

Chapter 1 – Statutory interpretation: What does it mean?

Chapter 2 – Text: What text is relevant, and how is text relevant, to finding meaning?

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